Bill C-78 (Historical)

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

This enactment amends the Divorce Act to, among other things,
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations.
The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things,
(a) allow the release of information to help obtain and vary a support provision;
(b) expand the release of information to other provincial family justice government entities;
(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and
(d) extend the binding period of a garnishee summons.
The enactment also amends those two Acts to implement
(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996; and
(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things,
(a) give priority to family support obligations; and
(b) simplify the processes under the Act.
Finally, this enactment also includes transitional provisions and makes consequential amendments to the Criminal Code.

[Gene Colman]

Thank you very much, Mr. Chairman.

My experience, first of all, is as a family law lawyer since 1979. As a law student, I founded the Canadian Journal of Family Law. I've published many family law articles, including one that was cited favourably by the Supreme Court of Canada. My practice is dedicated to finding the optimum solutions for kids. I appear before you as a founder of Lawyers for Shared Parenting and co-author, along with five others, of the brief that our organization submitted.

As a little bit of my personal history, I have one 47-year marriage. I have seven kids, with no divorces amongst the married ones, and 13 grandkids. I hope that demonstrates that I have no personal axe to grind here.

If my views with respect to rebuttable presumption of equal shared parenting are adopted, I will likely ultimately have less family law legal work to do, and I hope that happens.

There are two reasons that this committee should adopt rebuttable presumption for equal shared parenting. The social science literature is crystal clear, and the public overwhelmingly wants it, but many lawyers do not.

The social science literature overwhelmingly establishes the utility of ESP, which is short for equal shared parenting. You can find the footnoted sources at footnote 44 of our brief. If you need help to access them, just send me or my co-authors an email. At my website, complexfamilylaw.com, I have a number of quotations from the social science literature under the title “Equal Shared Parenting Thought of the Day”.

It really comes down to three simple points when we're dealing with the literature. One, the closer we get to 50% residential time, the better the outcomes are for children. Two, ESP gives better outcomes on many axes of measured child behaviour and child adjustment. Three, ESP outcomes are better, even independent of other factors.

Let me make three points there. One is on the quality of the parent-child relationship, and we've learned that even marginally fit parents are beneficial for kids. The second factor is parental incomes. Benefits of ESP are not tied to standards of living, as some have claimed. Third, whether it's a low-conflict or high-conflict level, they do not yield appreciably different results in terms of benefits to children, but I will concede that extremely high-conflict situations could negate equal shared parenting.

The arguments against ESP are responded to much better than I could do by Professors Nielsen and Kruk, and they are cited in our brief.

I want to talk about public opinion polls. Our brief, on pages 13-15, presents the public opinion polls. Public support for rebuttable presumption is very consistent and high. Opposition within the bar is very strong, and for that, please see Professor Nick Bala's brief and see the Canadian Bar Association brief.

Bill C-78 did not even mention anything approaching a rebuttable presumption for ESP, so I ask, why doth they so vehemently protest? If we adopt the L4SP position—that's Lawyers for Shared Parenting—you will make a lot of lawyers very unhappy, but you will make many Canadians very pleased indeed.

Do you choose the lawyers, or do you choose the public? I say, choose neither. Choose the children. Give the children of divorce the best chance to maintain and strengthen relationships with all of their parents and grandparents. Even with your much-applauded change in terminology, unless you take the very bold step that I am urging on you here today, the system will continue to pit parents against each other, each trying to prove that he or she was the primary parent, and each trying to prove that he or she is a better parent. It's time to implement a sea change. It's time to really make a difference in the lives of Canadian children.

I want to mention two briefs, the B'nai Brith Canada brief, authored by John Syrtash, who I see is in the room today, and my very good friend Professor Nick Bala's brief. With reference to Mr. Syrtash's brief, B'nai Brith Canada has expressed support in its brief for a rebuttable presumption for ESP.

While Lawyers for Shared Parenting welcomes that support, we do caution that the test its legal counsel, Mr. Syrtash, applies is overly stringent—namely, that the presumption is rebutted only in “unconscionable circumstances”. We maintain that there must be greater flexibility.

L4SP also commends John for his analysis of the family violence sections of the bill. We agree that the current wording will likely create [Technical difficulty—Editor].

[The Chair, Liberal, Anthony Housefather]

It's a great pleasure to reconvene our study on Bill C-78. We are joined by a very distinguished panel here today. Via video conference from Beersheba, we have Gene Colman, who is representing Lawyers for Shared Parenting.

Mr. Colman, can you hear us?

Accessible Canada Act

[John Barlow, Conservative, Foothills, AB]

Mr. Speaker, that is something we all have to take to heart. When we ask Canadians to come to Ottawa or to participate in a study because we want to consult with them and get their opinion and their input to help build legislation, and they come up with something that we then ignore, we lose their confidence. We start to lose the confidence of Canadians if we do not listen to what they tell us.

As I said in my presentation, this was not something that was divided along party lines. Conservatives, New Democrats and members of the Green Party put forward recommendations that were almost identical. Most of us agreed on the direction this bill had to take.

It was just extremely disappointing to us and our stakeholders to see the government's inability to take those extra couple of steps to really take Bill C-81, the accessibility act, to where it could have really made a definitive difference in the lives of Canadians with disabilities.

[Kim Hawkins, Executive Director, Rise Women's Legal Centre, West Coast LEAF]

Thank you. I will try to be brief.

As everyone here I'm sure is aware, in 2013 British Columbia updated its family law legislation and adopted the new Family Law Act, or FLA. The Family Law Act changed the law in B.C. by providing a consistent approach to the identification and assessment of family violence and created new duties for family dispute resolution professionals to assess for the presence of family violence. The reason I expect you're aware of this is that many of the ideas and the provisions in the FLA have influenced the amendments being proposed in Bill C-78, so that places those of us who work in B.C. in a unique position to comment on how these provisions are being interpreted and developed.

Unfortunately, our experience as family lawyers shows and research from B.C. confirms that, in many cases, despite the very positive legislative changes, judges are not, first of all, getting relevant information about family violence, which they're required by law to consider. Even where that information is available and judges find as a matter of fact that family violence has occurred, misinformation and stereotypes about family violence continue to influence outcomes of cases. While judges have been very receptive to applying an expanded definition of “family violence”, lawyers and judges continue to make a number of problematic assumptions about family violence.

For example, in some B.C. cases courts have continued to effectively read in a friendly parent rule and emphasize maximum contact, even though there was a deliberate decision in B.C. not to include those Divorce Act norms. This approach can and does end up privileging contact time at the expense of reviewing the best interests of the child and considering family violence, and in some cases, ends up ignoring the actual imperative in section 37 of the Family Law Act, which emphasizes that a child's safety is to be protected to the greatest extent possible.

We continue to see cases where judges assume that because a child was young when the family violence occurred, it will not affect them, despite the fact there is evidence that family violence can harm even infants and toddlers. We continue to see cases where it is assumed that abuse that is directed at one of the children's parents has little to do with overall parenting ability.

We continue to see an unwarranted optimism that violence ceases upon separation and that, in spite of a history of violence, it's appropriate to require victims of that violence to now work co-operatively with the abusive spouse, and that this can be done without risk. We continue to see myths about women's credibility, for example that credible women will disclose violence early, will report violence to the police, and will leave their relationship and not return, even though we know that it often takes women multiple attempts to leave abusive relationships.

The critical lesson to take from the B.C. experience is that to ensure the changes that are being made to the legislation have their intended effect, you must go further than simply directing courts to consider family violence.

First, we fully support the requirement that our colleague spoke about earlier, which is that family law professionals obtain mandatory training in the dynamics of family violence, including how to screen effectively for family violence.

I can promise you that understanding of and sensitivity to family violence did not crystalize in B.C. overnight when the Family Law Act came into effect. Lawyers do not, in my experience, have any special insight into the dynamics of family violence without some form of ongoing training. At our student clinic we regularly have women attend the clinic who tell us that their counsel didn't ask them about family violence and told them not to speak about family violence because it would be messy, would raise issues of credibility, and often they already have orders in place.

As you all know, to change a family law order often requires showing a material change in circumstance, so the decision not to disclose early can have very important implications on the ability to change that order later. Without mandatory education on family violence, the legal system will respond much more slowly, despite the best of intentions, including those provisions.

Second, we support the approach that was proposed by NAWL earlier tonight about including specific provisions in the family law act that would prohibit courts from making certain inferences about abused parents that are based on specific identifiable myths and stereotypes. You already have that brief. I'm not going to go through the various stereotypes and inferences they discussed. This approach does have a clear precedent in section 276 of the Criminal Code, which stipulates that evidence of prior sexual activity is not admissible to support the twin myths often found in sexual assault discourse. Those twin myths are that somebody who's had prior sexual relations is more likely to have consented and is less credible as a result. Those provisions have had a really important influence on the development of sexual assault law in Canada.

Like sexual assault, family violence is a practice of inequality and is one of the clearest expressions of discrimination against women in society. As in the Criminal Code, clear direction in family law acts and in amendments to the Divorce Act would have the effect of refocusing family law cases on evidence that is actually relevant to the material issues in the case and the outcomes, and supports equality of outcomes rather than allowing essentially misinformation and myths to distort the legal process. It would be incredibly helpful in ensuring that the provisions that everybody is working so hard to put in place are fully realized.

[Elba Bendo, Director of Law Reform, West Coast LEAF]

Good evening and thank you for inviting us to make submissions on Bill C-78.

My name is Elba Bendo and I'm the director of law reform at West Coast LEAF. West Coast LEAF is a B.C.-based feminist legal advocacy organization. Our mandate is to use the law to create an equal and just society for all women and people that experience gender-based discrimination.

Right now, I'd also like to introduce Kim Hawkins, who's the executive director of Rise Women's Legal Clinic. Rise is a student clinic that provides legal services to low-income women on family law and related issues and we've asked to share our time with Ms. Hawkins.

Like many before me, I would like to say that West Coast LEAF welcomes the important amendments proposed by Bill C-78. We are very glad that the intended purpose of the legislation—to promote faster, better and more cost-effective solutions to family law disputes—recognizes the difficult reality that many people across this country are alone in navigating the legal system during what is often one of the most difficult times in their lives.

Earlier today, you heard from NAWL, who brought to your attention the fact that 31 organizations representing women in all their diversity share in the view that a robust framework around family violence is needed to collectively advance the four goals of this legislation, including that of promoting the best interests of the child.

The reason that I believe you are seeing such a strong and uniform showing on the issue of family violence is that, for decades now, there's been clear and well-documented evidence of the links between family violence, marriage, parenting and divorce. What this evidence has been clearly telling us is that, in some circumstances, increased communication and co-operation among spouses is not in the best interests of the child, and in fact can have dire consequences for women and children.

In our brief, we set out the provisions regarding communication and co-operation that are at the greatest risk of producing harmful outcomes in the context of family violence. In an effort not to duplicate our brief, I will focus my submissions on only two. First, the maximum parenting time provision and also what is commonly referred to as the “friendly spouse” provision, set out in proposed paragraphs 16(3)(c) and (i).

These provisions prioritize paternal rights over the best interests of the child. While these two interests often coincide, this is rarely the case in the context of family violence. In fact, research shows that contact with a violent parent is often not what is in the best interests of the child and can have dire and, at times, lethal implications for children. In practice, these provisions perpetuate problematic myths that suggest that women have malicious intentions to alienate fathers in divorce proceedings. Despite having been firmly debunked, these myths have been relied on to discredit women's legitimate claims of violence over the years, and are, sadly, alive and well in family law proceedings today.

Contrary to these myths, studies show that mothers overwhelmingly want fathers to spend time with their children. Studies also show that there are an increasing number of joint custody and shared parenting arrangements in Canada and that statistics that, at first glance, appear to indicate a bias in the system are really more reflective of the number of fathers that seek custody. In fact, fathers are awarded primary or joint physical custody a majority of the time, when they actively seek it. This is often the case, even when there are allegations of family violence.

These concerns were recognized in B.C., where the new Family Law Act not only excludes these presumptions about what is in the best interests of the child, but specifically directs the courts to not presume that shared parenting time is in the child's best interests. In turn, the act emphasizes that some of the circumstances that are relevant to what is in the best interests of the child include the nature and strength of the child's relationship with significant persons in the child's life, the history of the child's care and the impact of family violence on the child's safety.

We strongly believe that the objectives of the act will be better served with the incorporation of similar language and recommend the removal of the maximum parenting time and friendly parent provisions from this bill.

Due to time constraints, I will end it here and pass it over to Ms. Hawkins.

[Heidi Nabert, President, National Shared Parenting Association]

Thank you, Mr. Chair and committee members. We appreciate this opportunity.

First I'd like to address the areas of agreement. The National Shared Parenting Association applauds the adoption of new terminology to describe child custody, access and support relating to children and families post-separation and post-divorce. Although the terminology does not address some of the key issues that continue to face children of divorced families, the new terms “parenting order”, “contact order”, “parenting time” and “decision-making responsibility” better reflect that the Divorce Act and its enforcement are for families, and the new family-friendly language is more appropriate to describe Canadian families that are facing separation and divorce.

Our overview and analysis of Bill C-78 are based on the justice department's press release of May 22, 2018. The National Shared Parenting Association is going to address the four key objectives of the bill, namely, the best interests of the child, addressing family violence, helping to reduce child poverty, and making Canada's family justice system more accessible and efficient.

We begin with best interests of the child. Currently, the Divorce Act bases the best interests of the child on a series of questions that are open to interpretation by a family court judge. Although most often the family court judge will review the past and present parenting arrangements when a family separation occurs, it can often become a wake-up call or a signal for some parents to the importance of exercising the maximum contact rule with their child. Even though the parenting time history of that parent is not consistent with the rule, it should not penalize the child from benefiting from the maximum contact rule with that parent.

Under these circumstances, the court should not infer a negative view of the parent seeking to expand the parenting time with his or her child based solely on the history of the parent-child relationship prior to the family breakup. A child's needs are paramount under all circumstances, and if one parent who has not been involved prior to separation shows a genuine interest in expanding their parenting time post-separation, ultimately this is of great benefit to the child and should be considered to be such.

Children of divorced and separated families face difficulties stemming from the loss of consistent and predictable parenting time with both parents. Often, after a family separates, the child spends the majority of parenting time with one parent—usually the mother—and very limited parenting time with their father. Parents are the foundation of a child's well-being. Their feelings of security and safety stem from the consistent time they spend with each parent and the benefits of the parenting they receive from each parent.

Although the maximum contact rule is cited, it is most often not incorporated into final court orders for parenting time with the non-custodial or non-primary parent—usually the father. With flextime, many more professionals are able to work from home, allowing for working parents to care for their children with a shared parenting schedule. Assuming that family violence is not present or has not been an issue in the past, a shared parenting court order is what is best for our children.

According to the Public Health Agency of Canada, of all reported violent crime in 2016, approximately 26% resulted from family violence in which 67% of the victims were women and girls, and 33% were men and boys. While family violence can be very detrimental to children, thankfully it remains a relatively small percentage, but nonetheless needs to be taken seriously within the family court proceeding.

Of equal importance is when a false allegation of abuse has been made in order to gain the upper hand in family court proceedings. Criminal proceedings can take up to 18 months to resolve for the accused—usually the father—all while a status quo has been established with the children and the accuser—usually the mother. The children are the biggest losers in this scenario. The family courts have an obligation to help re-establish the parenting relationship between the children and their father, assuming he has been exonerated of all charges.

While the percentages imply that the violence is most often perpetrated by men, interestingly the statistics for those in same-sex partnerships, in particular women who self-identify as lesbian or bisexual, show significantly higher rates of violence by partners than did those for heterosexual women.

Next we will focus on reducing child poverty.

While child poverty is an ongoing concern, according to the Department of Justice, studies have identified that child support is a key factor in lifting families out of poverty following a separation or a divorce. There are no easy answers. However, the child support enforcement process appears to be working to help with that issue.

In regard to the objective of making Canada's family justice system more accessible and efficient, the current family court process is complex, slow and costly, which accounts for the increase in self-represented litigants in family court. According to Justice Canada, the number of self-represented litigants has increased over the last five years to between 50% to 85%, primarily because they are unable to afford legal counsel for family court proceedings.

Self-represented litigants are often identified as being the main source of clogging the family courts, as judges are faced with having to explain the process rather than preside and make decisions. It is of paramount importance for the justice department to simplify the family court process, allowing for the large number of self-represented litigants to better understand what is required and how to prepare.

For example, when it comes to a child support obligation, when a payer's income increases, it is a relatively simple process to amend the amount being paid. However, when a child support payer loses his or her job, the process to vary child support in a court order can take several months and up to a year to amend the court order. While the legal proceedings are going forward at a snail's pace, the child support collection agency begins the process of implementing punitive measures such as confiscating a driver's licence or passport, which ultimately makes it much more difficult for that payer to find a job.

From a logical standpoint, when a person does not have a regular income due to job loss, they are unable to afford a lawyer to help amend their child support obligation, all while they're struggling to pay the court-ordered support, which no longer reflects their current income level.

In closing, the process to vary a child support order when a payer faces a job loss should be as simple as when a payer's income increases. It is incumbent upon the justice department to implement measures that help make that possible so that the payer can focus on getting back into the workforce rather than dealing with the related stress of proceeding to family court for up to a year as a self-represented litigant.

The end result would be that the child support is paid based on the current income and reduces the number of self-represented litigants in family court, thereby speeding up the process for all Canadians in family court.

Thank you.

[Robert Samery, Chair of The Board, Canadian Centre for Men and Families]

Thank you very much, Mr. Chair and committee members, for having us here today.

I represent the Canadian Centre for Men and Families, which is associated with the Canadian Association for Equality. With me today is Professor Jess Haines from the University of Guelph.

The Canadian Centre for Men and Families was established in 2014. The centre has grown quickly, with physical hubs now in Toronto, Ottawa, London and Calgary. We offer services focused on the health and well-being of boys, men, fathers and families. The centres are open, inclusive and safe spaces providing therapy and counselling, peer support, a legal clinic, fathering programs, mentorship and support services for male victims of trauma and violence. We provide services, research, advocacy, outreach and public education on all aspects of men's issues. We also focus on children and families, not just on the one demographic we centre on.

It may be a surprise, but we have a lot of agreement with people who sometimes don't agree with us entirely. In this context, let me just say that we agree that removing an individual from a child destroys a relationship. I heard that comment today, and I couldn't agree with it more. Full parenting, equal parenting or maximal parenting is the best outcome for any child.

We also agree that, in cases of intimate partner violence, the definition should include coercive control and much else that our prior witnesses identified. We decidedly disagree that it should include anything to do with gender. Violence is not a gendered issue, and we would strongly advocate against that. We also agree that there is a distinction, which some of the prior witnesses have raised, between violence and high conflict. They shouldn't be conflated and shouldn't be dealt with in the same way. There are other points of agreement that we can find quite easily as well.

A very large percentage of our work deals with clients who have been embroiled in proceedings under the Divorce Act. Almost all of our separating or divorcing clients have children involved. They are, for the most part, traumatized by their children's experience of being confronted with a court process that is unfriendly towards children's needs to maintain a good relationship with both their loved parents. In short, the system needs repair. That's not news.

The announcement of Bill C-78 was widely praised by a large cross-section of individuals, organizations and stakeholders. We agree with a vast number of those stakeholders that the family law system is in desperate need of deep reform. With the announcement of the bill, the government has indicated a readiness to, at the very least, hear from the above interested parties about how each would suggest that this committee make positive advancements in the legislation governing couples' attempts to reconcile their own breakup while looking after the delicate needs of their children.

Legislation is pivotal in these parent-child relationships. It can grease the improvement of those relationships or help tear them apart. ln either case, the health and well-being of the child can be significantly affected.

We're advocating for an equal shared parenting presumption. Equal shared parenting, from our perspective, means that children have as close to an equal amount of both parents' time as well as being subject to both parents' judgment on long-term and important issues relating to the child.

I'd like to turn it over now to my colleague to talk about why equal shared parenting is most helpful to children.

[The Chair, Liberal, Anthony Housefather]

We will now reconvene with our second panel of the day on Bill C-78.

It gives me great pleasure to introduce, from the Canadian Centre for Men and Families, Mr. Robert Samery, chair of the board, and Ms. Jess Haines, associate professor at the University of Guelph. From the National Shared Parenting Association, we have Ms. Heidi Nabert, president, and Ms. Lynda Baracetti, director, LGBTQ Issues. From The Redwood, we have Ms. Abi Ajibolade. Abi is so nice. She said that if anybody has trouble with her last name, they can call her Abi. She is the executive director.

From West Coast LEAF, we have Ms. Elba Bendo, director of law reform, and Ms. Kim Hawkins, executive director, Rise Women's Legal Centre.

Welcome to all of you.

We'll go in the order on the agenda and start with the Canadian Centre for Men and Families.

[Suki Beavers]

Thank you for the question.

I think Bill C-78, with the inclusions that we've proposed, will go a long way to changing that culture if a couple of things happen.

The first is that the mandatory screening, using an accepted tool that we've talked about, takes place. Also, you'll see in our brief that we've called for mandatory education of all actors in the family law system, to understand what family violence looks like, to break down those myths, to ensure that even inadvertently there isn't reliance on some of those myths and stereotypes in the context of divorce and beyond. We think that Bill C-78 can make some tangible advances towards substantive equality for women and children, but there are some adjustments that need to be made.

The other thing we will say is that funding for legal aid for support is absolutely necessary, and the education piece for all the actors involved in the family law system is really critical, in order for there to be any kind of systemic change in the way in which the family law system now operates.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair, and thank you to the witnesses.

I want to start off by clarifying. Ms. Beavers, you mentioned in your remarks that you are in support of family dispute resolution or alternative dispute resolution. Could you comment on Ms. O'Brien's views on the impact of ADR or FDR with respect to Bill C-78?

[Suki Beavers, Project Director, National Association of Women and the Law]

I'm going to hazard a guess that I may be more fascinating. Let's see. The gauntlet has been thrown down.

Good evening and thank you very much for this opportunity to speak on Bill C-78, on behalf of the National Association of Women and the Law. As I think most of you know, NAWL is an incorporated, not-for-profit, feminist organization that promotes women's equality in Canada through legal education, research and law reform advocacy. Advocating for the much-needed changes to family laws, including the Divorce Act, has been a focus of NAWL's work since the early 1980s, so it brings me great pleasure to begin this evening by congratulating the government for introducing C-78. There are many aspects of this bill that we fully support.

However, before I get into talking about the specifics, I want to reflect that NAWL worked jointly with Luke's Place in developing both a discussion paper and a brief on C-78, which I think you all now have. Our joint brief has been endorsed by 31 organizations from British Columbia, Saskatchewan, Manitoba, Ontario, Quebec and New Brunswick, as well as more than a dozen national feminist and equality-seeking groups, and is the fruit of consultations that we convened with feminist lawyers, academics, service providers and advocates. I mention this, not just because we're proud of our network and of our collaborative work—because we are—but also because it's important to emphasize the depth and the breadth of our shared feminist intersectional analysis of Bill C-78, particularly in relation to the issue of family violence in the context of divorce.

Now, let me turn to some specifics, beginning with the aspects of the bill that we fully support. We congratulate the government for putting the best interests of the child at the centre of this bill and for developing a much-needed set of criteria to help guide the determination of what will be in the best interests of each child, based on the recognition that every family and every child's needs are unique. NAWL fully supports the exclusion from this bill of any presumptions of shared parenting. Determining what's in the best interests of the child must be done on a case-by-case basis.

We also fully support the inclusion of family violence in this bill and a comprehensive definition of it that recognizes that family violence exists on a spectrum.

I now want to turn to some aspects of the bill that we think do not yet go far enough because, as we know, the impacts of family violence can continue long after a marriage ends.

Our first recommendation is that a preamble be added to this bill that acknowledges the gendered nature of family violence and confirms that addressing family violence is one of its aims. The evidence here is clear and unequivocal. As with other forms of gender-based violence, the majority of victim survivors of violence within marriage, and when it ends, are women. Men are overwhelmingly the perpetrators of this violence. A preamble is important because it can guide the interpretation of an act and is good practice. Just a few weeks ago, when it was used in Bill C-86 to frame the establishment of the new department of women and gender equality, which will replace Status of Women Canada, that bill included a preamble that recognized the government's obligations to advance women's rights and gender equality. A similar preamble should be added to C-78 that recognizes that women experience family violence, as a form of violence against women, and that women have diverse lived experiences of it. We've drafted a preamble that we hope this committee will recommend to be included in the act.

In addition, we also recommend that a definition of violence against women be added, which acknowledges that it is a form of gender-based discrimination that's experienced by women in multiple ways and shaped by other forms of discrimination and disadvantage. This intersects with race, indigenous identity, ethnicity, religion, gender identity or gender expression, sexual orientation, citizenship, immigration or refugee status, geographic location, social condition, age and disability. This would be consistent with the government's commitment to GBA+.

The appalling and ongoing situation of violence against indigenous women must be redressed immediately. We urge the federal government to consult with indigenous women's groups on the potential impacts of C-78 on indigenous women, their children, their communities and their families to ensure the cultural heritage, safety, security, autonomy and rights of indigenous women and their children are respected, protected and fulfilled, and not further endangered or violated by any direct or indirect impacts of any of the provisions of C-78.

We propose the addition of provisions to help ensure decision-makers do not rely on harmful myths or stereotypes about family violence, even inadvertently, when they're making decisions in the context of divorce. While I don't have time to read through the entire section that we have drafted—I hope you will, though—I will highlight some of them, including for example, that a court should not infer that because a relationship has ended or divorce proceedings have begun the family violence has ended.

A court should not infer that if claims of family violence are made late in the proceedings or were not made in previous proceedings they're false or exaggerated. A court should not infer that if a spouse continued to reside or maintain a financial, sexual or business relationship—or a relationship for immigration purposes—with a spouse, or has in the past left and returned to a spouse, family violence did not happen or the claims are exaggerated.

The court should not infer that leaving a violent household to reside in a shelter or other temporary housing is contrary to the best interests of the child. The court should not infer that fleeing a jurisdiction with children in order to escape family violence is contrary to the best interests of the child. Also, the court should not infer that the absence of observable physical injuries or the absence of external expressions of fear mean that the abuse did not happen.

I don't have time to adequately address this issue, but I also want to reflect some thoughts on changes to language included in Bill C-78.

We understand and commend the objective of reducing tensions and conflict in divorce proceedings. However, there is no evidence that removing the familiar language of custody and access will actually reduce conflict and benefit children. Further, there's a real risk that this change in terminology will create uncertainty that will be available to abusers to exploit and to perpetuate ongoing abuse through court proceedings and otherwise.

Indeed, we heard from feminists in other jurisdictions, including British Columbia, where similar language changes have been made, that they have not seen a reduction in conflict in family law proceedings after the terminology of custody and access was removed from the provincial Family Law Act. Therefore, we recommend that the language of custody and access be retained and inserted in Bill C-78.

In addition, we believe the proposed definitions of parenting orders and parenting responsibilities are too vague and ambiguous and also provide opportunities for abuse. We recommend, therefore, that a clearer set of responsibilities be set out for the parent with decision-making responsibility.

Because of time constraints, I'm going to end my comments here, but I'm of course eager to answer any questions that the committee might have. I want to simply confirm that NAWL supports the positions that Luke's Place will now present, which, like ours, are the product of our joint work together.

I thank the committee again for providing NAWL with the opportunity to appear this evening.

[Lawrence Pinsky, Taylor McCaffrey LLP and Past Chair, Family Law Section, Canadian Bar Association, As an Individual]

Thank you for inviting me to speak to you this evening.

I want to thank you, as well, for making me feel so comfortable by bringing January weather from my city of Winnipeg, here to Ottawa this evening.

I should acknowledge, as well, the Algonquin nation whose traditional territory we, as I understand it, are gathered upon.

Bill C-78 is clearly an advance in family law in Canada, and the government should be commended for bringing it forward. This should be a non-partisan issue. I worked closely with the then NDP government of Manitoba that brought in a bill that had very much the same underlying philosophies. I worked closely with the former minister from the Conservatives at the federal government. The same principles were agreed upon—best interests, relocation amendments and these types of things—and, of course, we see what's in Bill C-78.

When we look around the world and see the things going on elsewhere, we should thank all of you for the level of discourse and the civility we have in bringing forth these common ideas.

I want to spend the little time that I have talking about some amendments that, I would submit to you, would further the purposes of the bill. They would avoid unexpected consequences from, what I would suggest, are problems with the bill. I'd encourage you, most of all, as you consider the bill, to follow the social science in the area. Family law, as all law, has to change as society evolves, of course. You can't get too far ahead, but you can't lag behind, and I would submit to you that following the social science is key.

Let's look at what we can do with that in the limited time I have. I begin with the definition section. I'd suggest to you that when you look at decision-making responsibility, in terms of the words “significant” extracurricular activities, “significant” is included under decision-making responsibility.

Families fight about extracurricular decision-making. Who has the right when one parent puts the child in activities without consulting the other parent, especially on their time? You already have “significant” decisions in the preamble. I'd encourage you to take out “significant” extracurricular activities. We don't want to have battles on what is a significant versus an insignificant extracurricular activity. Just take it out. It's not necessary.

Family dispute resolution process is another area that's important. We haven't included mediation and arbitration. These are very common in B.C., Alberta and Ontario. It's coming to Manitoba. I'm working on that very hard, and so are some of my colleagues, to make it a reality in Manitoba. It's popular elsewhere. I realize it's an open set in there. It's not a closed set, but add that in. It's there.

Family violence needs some attention too, but some of my co-presenters are going to speak to that, so I'm not going to spend time on that. There are some issues there as well. It's also in my submissions.

I'm going to invite you to turn to duties. It's a great idea to add the duties of parties, of lawyers, which are expanded, and also of courts. I'd invite you to look at proposed section 7.6, in particular, where there's a certification required, and that certification is only when you commence proceedings. I want to see parties say they're committed to those principles every step of the way. Every motion, every application, every variation, they should be reminded of that.

When you turn to the duties of the court, they're supposed to know about information for other orders and proceedings elsewhere. Unless the government's going to fund a registry or some sort of database, there's no way to know that. Manitoba courts aren't going to know what's happening in Prince Edward Island if there's a child and family proceeding out there or a criminal proceeding out there. They don't even know what's happening between superior courts and provincial courts.

The fix is one of two things I would suggest. One is to also make that a duty on parents to disclose. They should have to disclose, and the courts will impose a consequence if they don't, if there was a child protection proceeding some place, a criminal proceeding or what have you. That's very important. Keep it in for the courts, but add it in there, and if you have a couple of extra bucks as you go through budgets, maybe you could create a database because that would be even more helpful.

I'm not going to talk about best interests factors. I suspect other people will. I will, though, tell you—and it's important to focus on best interests—not to have presumptions. I can talk at length about it. If you ask me questions, I'll talk about that, but it's very important. What the government did here is correct. It's supported, as I said, by the NDP in Manitoba in what it did when it was in government. It's supported by the previous minister of justice who was a Conservative, and of course, here. It is the correct approach.

Let me look, in the limited time that I have left, at relocation, because that's really so important. I'm just going to say that in a few areas there are some new, vague terms that aren't defined.

What do children need? I want to invite you to consider the legislation through the eyes of a child. What does a child need? We all agree—the men's groups, the women's groups, the lobbyists—everybody agrees that best interests is what you have to focus on. The problem is that people have different ideas of what that means or of how you get there, but the reality is that we all focus on that.

View it at every step of the legislation and think, does this work for a child? That's what I would suggest you ought to do. Where you have vagaries, that's a problem. Children need stability, consistency, predictability and close attachments to be fostered with as many people who love them as possible. That's what they need. To the extent that the bill doesn't do it, it's a problem.

I don't know how much time I have left. I'm speaking as fast as I can.

[The Chair, Liberal, Anthony Housefather]

Welcome to the Standing Committee on Justice and Human Rights as we resume our study of Bill C-78.

It is a pleasure to be joined by this distinguished panel of witnesses.

We have with us today, Lawrence Pinsky from Taylor McCaffrey LLP, past chair of the family law section of the Canadian Bar Association. From Luke's Place, a support and resource centre for women and children, we have Pamela Cross, who is the legal director. From the National Association of Women and the Law, we have Suki Beavers who's a project director. From the Women's Legal Education and Action Fund, we have Shaun O'Brien, the executive director and general counsel.

Welcome to all.

We're going to start with Mr. Pinsky.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you, Mr. Chair.

My question goes to Ms. Christianson-Wood.

Bill C-78 stresses the need for a dispute resolution mechanism, a process that would happen out of court.

That seems like a wise option to make the process of divorce easier. But does the bill contain the provisions needed to prevent the insistence on those mechanisms from creating disparities in access to justice as a result of a family’s social economic background? It is the poorest families who are directed to out-of-court processes because they do not have access to legal services.

[Glenn Cheriton, President, Canadian Equal Parenting Council]

Good evening, everyone.

I'm the president of a national parents organization, and before that I was involved in a number of parent support groups, going back almost three decades. During that time, we've done a lot of public opinion surveys, as well as having parents approach us. I'm passing on a lot of the opinions of parents who have come to us in desperation.

The public opinion surveys show that about 83% of the Canadian public supports the position that I'm about to present to you—that the current family law system is a major problem for parents. I'm speaking very bluntly here. The problem is that it's too costly, too inaccessible, too slow and too adversarial. Parents have lost confidence in the family court system in Canada. It doesn't resolve conflict. It doesn't work in children's interests. It's not fair. It's not efficient. It's not coherent and it's not responsible for its actions. It's arbitrary. Parents say the system is like a feudal system. Parents don't feel respected. They don't feel listened to in family court.

That said, I do support the aims of Bill C-78: the best interests of the child, accessibility of the courts, less poverty, reduced violence, improved child support. We also support the bill's movement from the terms “custody” and “access” to “parenting time” and “parenting orders”. This is perhaps just a symbolic change, but it's an important initiative in the right direction.

The real issue is whether a child will retain parenting time with both parents, not whether the adversarial legal system will profit from arbitrarily creating winners and losers. Parents want changes. Social science shows better outcomes in other jurisdictions around the world from a variety of somewhat similar approaches that I'm going to call equal shared parenting.

In these different jurisdictions, the terminology, the laws, the regulations and procedures vary, but all these approaches aim to keep both mother and father as full parents in the lives of their children. There are exceptions to equal shared parenting, but jurisdictions that get 30% to 90% of joint physical custody or equal shared parenting, or however you want to call it, show substantial improvement in the outcomes that were listed as the four objectives of Bill C-78.

In Europe, for example, equal shared parenting is made up of shared parenting plus recognition by governments of two homes for the children. A lot of other problems are recognized and solved. No longer can one parent deny the educational records of the child, or the health records, and it goes on.

In the United States, equal shared parenting is made up of joint physical custody. A number of states have moved essentially to joint physical custody and their laws vary, for example, between a law in Arizona and a law in Kentucky. There hasn't been movement away from shared parenting, as has been claimed, but the states are increasingly moving toward it against some pretty substantial opposition from the vested interests.

In Canada, there's a problem in that what we call joint custody is essentially sole custody with a coat of imaginary legal paint. The problem is that they call it “joint custody” but they say it's sole physical custody to one parent, which means that you cannot enforce one parent's side of the agreement. One parent's parenting time is not enforced; therefore, it's not a good agreement from the standpoint of that particular parent.

There is overwhelming scientific, peer-reviewed, accepted evidence that equal shared parenting is in the best interests of the child. I have some of it here from around the world. The problem is that, as far as I know, there is no evidence that Canada's primarily sole custody system acts or is in the best interests of the child. Parents don't believe it is, and by extension these parents blame the legal profession. They blame the judges, the laws and the parliamentarians who enabled, funded, regulated the system and appointed the judges.

I would like to cite a report by Supreme Court Justice Thomas Cromwell, “Beyond Wise Words”, which says that Canada's family law system is largely inaccessible.

You have a choice. You can either put substantially more funding from legal aid or social services, and a whole bunch of others, into the system, or you can try a system that is working in other jurisdictions, such as equal shared parenting in Australia, Iceland, Denmark, Sweden and many other jurisdictions, where over 90% of parents retain their parenting time and decision-making, which essentially is the “equal” part of the equal shared parenting. They do that without going to court and without hiring lawyers.

I wanted to deal with the question of poverty. If you're dealing with child poverty, you're dealing with parental poverty. Family poverty is parental poverty, and the current adversarial system produces parental poverty. Equal shared parenting reduces costs to parents, so the parents can have more investment with their children, and that's the experience of these other jurisdictions.

Dealing with the question of family violence, this is part of a continuation from conflict, abuse, violence and criminal behaviour. However, equal shared parenting in the various jurisdictions is shown to reduce conflict. It reduces violence. Furthermore, the problem with the sole custody system is that violence and conflict increase over time because the problems are not resolved, whereas in the situation of equal shared parenting, conflict is reduced over time and there is research to support this.

The question of child support is also brought up as an objective of the bill. It is clear from the research that more child support is collected if the parents are under a joint custody regime, equal shared parenting, whereas the child support problems are largely in the sole custody situation.

Even though a number of legal scholars are increasingly accepting shared parenting—I would note Professor Nick Bala as an example—they don't accept the equality part of equal shared parenting. The question is, why do parents need equality? The inequality of parents means that one parent is relegated simply as a bystander. He is no longer a parent—he or she, as it's also happening increasingly to mothers. Half of our board members are women.

The problem is that once you are unequal, the court rulings are only enforced on one side. Therefore, the other parent can decide whether your parenting time is going to be respected or not. What we're looking for.... You can call it equal shared parenting; you can call it a starting point; you can call it rebuttable presumption; you can call it an onus. Whatever you call it, the outcome should be the same: keeping both fit parents in the lives of their children.

Professor Kruk mentioned first nations. We have shared the land with them, but we have 95% of that land. They're not equal in the land. With the native residential schools, the government claimed best interests, but it caused harm. There was no consultation with the parents.

To fix this problem, we want the Department of Justice and this committee to recognize parents as stakeholders. We want to collaborate with the government. We want to collaborate with Justice Canada, and we want to fix this problem, so that parents can go back to parenting and not spend their money and time in court.

Thank you.